Whether anti-union animus renders an employer's partial closing decision a mandatory subject of bargaining under the National Labor Relations Act and whether lawful intra-management communications can be considered as evidence of anti-union motivation

QUESTIONS PRESENTED The Supreme Court in Textile Workers Union of America v. Darlington Manufacturing Co., 380 U.S. 263, 273-75 (1965) held that an employer’s anti-union animus alone is insufficient to render a partial closing unlawful under the National Labor Relations Act (the “Act”). In First National Maintenance Corp. v. NLRB, 452 U.S. 666, 684 (1981) the Court further held that a partial closing decision is not a mandatory subject of bargaining under the Act. Here, both the Sixth Circuit and the National Labor Relations Board (the “Board”) ruled that the Petitioner, Quickway Transportation, Inc. (“(Quickway”) violated the Act by failing to bargain over a partial closing decision allegedly motivated by anti-union animus. In finding that the closing itself also violated the Act, the Sixth Circuit and the Board relied upon lawful intra-management communications as evidence of anti-union animus and a purpose to chill unionism, despite the congressional command that an employer’s non-coercive expressions of “views, argument, or opinion . . . shall not constitute or be evidence of an unfair labor practice[.]” 29 U.S.C. § 158(c). From these circumstances and the proceedings below arise the following questions: 1. Whether anti-union animus renders an employer’s partial closing decision a mandatory subject of bargaining under 29 U.S.C. § 158(a)(5) and (d). 2. Whether 29 U.S.C. § 158(c) precludes consideration of lawful intra-management communications as evidence of anti-union motivation in support of an unfair labor practice.